BUSINESS NEWS - Dr Lukas du Preez, a labour law advocate from George, and Magda van der Westhuizen, labour law consultant from George, shed light on the increase of maternity leave for fathers to four months.
A decision of the Gauteng High Court that was handed down on 25 October in which it was held that relevant sections in the Basic Conditions of Employment Act, 1997 (BCEA) related to maternity leave, are unconstitutional, caused quite an upheaval.
These sections (in section 25 of the BCEA), relate to maternity leave, parental leave and adoption leave. The relevant High Court judgment is the matter Van Wyk and others vs the Minister of Employment and Labour.
In short, the court found that the current differentiation between the different categories of parenthood was discriminatory as equal provision is not provided for parenting by both fathers and mothers and/or one set of parents against another, on the basis of whether children were born of the mother or conceived by surrogacy or adoption.
At the moment, the following different types of leave relating to parental rights exist, provided that the employee works at least 24 hours per month for an employer:
Maternity leave
A female employee (and not her husband) is entitled to at least four consecutive months unpaid maternity leave: the employee may of course claim UIF benefits. Such leave may commence at any time from four weeks before the expected date of birth unless otherwise agreed, or on a date from which the medical practitioner or midwife certifies that it is necessary for the health of the employee or the unborn child.
The female employee may not work for six weeks after the birth of the child unless a medical practitioner/ midwife certifies that she is fit to work.
It is an automatic unfair dismissal (with the remedy of up to 24 months compensation in salary and/or reinstatement), if an employee is dismissed due to pregnancy.
Parental leave
Before 2020, parental leave was not legally obligatory. The legal position now is that an employee is entitled to 10 days unpaid leave (UIF may be claimed) per calendar year for the birth of his/her child.
Adoption and commissioning parental leave equal to 10 weeks applies
The court found that the different provisions as set out above were irrational, discriminatory and unconstitutional. Accordingly, the court declared these provisions invalid and instructed that Parliament should rectify the relevant provisions within a period of two years.
The Constitutional Court must now confirm the judgment and there is also the possibility that the minister may appeal against the decision.
The court further held that in the interim with immediate effect, pending the two-year period referred to above, pregnant women will be required to share the four-month maternity leave allocation with the other parent of the child, should the latter wish to take parental leave.
The four months will not run concurrently; the parents will have to take turns. If such arrangement is chosen by the parents, they are required to inform both relevant employers in writing of the arrangement.
The current provisions related to maternity, parental, adoption and surrogacy leave remain intact for the time being.
Progressive step
It should be mentioned that this judgment can be seen as a very progressive step in terms of worldwide tendencies in most progressive countries to provide for equal parental rights to males and females and in respect of adoption and surrogacy.
On the other hand, there may well be disagreement in various circles regarding some of the findings.
Employers should not overreact in this regard as it is clear that future alignment in respect of unequal and/or discriminatory legal provisions relating to parental leave is indeed required.
In the meantime, pending the constitutional court's judgment, the 'status quo' with regard to Sections 25 and 25A remains.
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